The Scottish Legal System Explained | History, Courts, And Unique Features
The Scottish legal system is a mix of civil law and common law, making it a hybrid system. Scotland has its own separate legal system within the UK, which means its lawmakers, courts, and government can make their own decisions about laws and policies.
Author:Callum FraserOct 15, 20253.4K Shares64.3K Views
How Does The Scottish Legal System Work
Scotland operates a legal system that stands apart from the rest of the United Kingdom, maintaining its independence through centuries of political change. The Scottish legal system is best described as a hybrid system, due to its use of both civil law and common law, creating a unique framework that draws from multiple legal traditions.
Scotland enjoys a distinct legal system from the rest of the UK, giving the legislature, judiciary, and government autonomy over law and policy decision-making. This autonomy survived the 1707 union of parliaments with England, establishing Scotland as one of the world's most distinctive mixed jurisdictions where Roman civil law principles blend seamlessly with common law practices.
The system's complexity stems from its dual nature. Unlike England's purely common law approach or continental Europe's civil law framework, Scottish law synthesizes both traditions alongside indigenous Celtic customs and institutional precedents. This amalgamation creates legal processes and principles that often differ substantially from those in England and Wales.
Scotland's Mixed Jurisdiction Explained
Scotland is typically regarded as a mixed jurisdiction based on an assessment of its combination of civilian and common law traditions, but this characterization only scratches the surface of what makes Scottish law unique. The "mixed" nature extends beyond a simple blending of two legal families.
The civil law influence manifests primarily in Scotland's approach to legal principles and reasoning. Scottish courts traditionally emphasize systematic legal reasoning based on established principles rather than relying solely on precedent. This philosophical approach to law reflects continental European thinking, where legal codes and scholarly commentary carry significant weight alongside judicial decisions.
Common law elements appear most prominently in Scottish procedural law and the doctrine of precedent. Scottish courts follow previous decisions from higher courts, creating binding precedent similar to English practice. The weight given to precedent differs; Scottish judges traditionally exercised more flexibility in departing from previous decisions when principled reasoning suggested different conclusions.
If this narrow definition of "mixture" is opened up, one will find several other traditions that are constituent parts of the Scottish legal tradition. These include feudal law, canon law, mercantile custom, and local practices that developed independently in Scotland's regions. The Highlands followed Celtic customs more closely, while the islands retained Norse legal influences from previous Scandinavian occupation.
This multiplicity of sources creates a legal system resistant to simple categorization. Scottish law doesn't merely combine two traditions; it synthesizes multiple legal inheritances into a coherent but distinctive whole that continues evolving to meet modern needs while respecting historical foundations.
Historical Development Of Scottish Law
Handling disputes in Scotland: a very short history of Scots Law
Legal historians tend to focus on the development of the Scottish legal system from the feudal period onward, since little is known about Scottish law before A.D. 1,000. Early Scottish law represented a patchwork of influences reflecting the nation's complex political history and geographical diversity.
Early Scottish law can be described as an amalgam of Celtic, Welsh, Irish, Norse, and Anglo-Saxon laws and customs, with various geographical regions experiencing one or more of these influences. The Norman Conquest of Englandin 1066 indirectly influenced Scotland, introducing feudal concepts that would shape property and succession law for centuries.
In subsequent centuries, political developments in Europe led to the formation of an alliance between Scotland and France against England, fundamentally altering Scotland's legal trajectory. As a consequence, in the fourteenth century, France and other European countries became a dominant influence on the legal system in Scotland.
This "Auld Alliance" with France proved transformative for Scottish law. Young Scots lawyers traveled to continental universities, particularly in France and the Netherlands, studying Roman law and civilian jurisprudence. They returned with sophisticated legal concepts and reasoning methods that gradually displaced older customary practices.
Initially, this resulted in the legal system in Scotland having a much closer association with the continental legal systems based on Roman law (civil law systems) than with the English common law system. This continental influence intensified during the Renaissance, when legal scholars like Viscount Stair synthesized Roman law principles with indigenous Scottish customs and practices.
At the union of the parliaments of England and Scotland in 1707, the legal systems of the two countries were very dissimilar. The Acts of Union explicitly preserved Scotland's separate legal system, ensuring that Scottish courts, legal education, and substantive law remained distinct. This guarantee created the constitutional foundation for Scotland's continuing legal independence within the United Kingdom.
The Scottish Court Structure
Handling disputes in Scotland: the Scottish Court system and progress of a court action
Scotland maintains a distinct court hierarchy separate from England and Wales, with different courts handling civil and criminal matters. Understanding this structure helps clarify how cases progress through the Scottish legal system.
Civil Courts
The civil court structure of Scotland incorporates three courts nationally and two European courts. The court of first instance in civil cases is the sheriff court, which hears the majority of civil cases in Scotland. Sheriff courts operate throughout Scotland's sheriffdoms, handling everything from small claims to complex commercial disputes.
These cases tend to be small money and family claims, though sheriff courts also possess jurisdiction over larger matters. The court's accessibility and geographical distribution make it Scotland's primary civil justice forum, with most Scots experiencing civil litigation at this level if at all.
The Court of Session is the supreme civil court of Scotland, subject to appeals to the Supreme Court of the United Kingdom. This court sits in Edinburgh and is divided into the Outer House and Inner House. The Outer House consists of 22 Lords Ordinary sitting alone or, in certain cases, with a civil jury. They hear cases at first instance, functioning as Scotland's highest trial court for civil matters.
The Inner House serves as Scotland's civil appeal court, hearing appeals from both the Outer House and the sheriff courts. The court is headed by the Lord President, the second in rank being the Lord Justice Clerk, who leads Scotland's judiciary and ensures consistency in civil law development.
The UK Supreme Court stands as the final appellate court for Scottish civil cases, though its jurisdiction respects Scotland's distinct substantive law. The Supreme Court typically addresses questions of UK-wide importance or resolves conflicts between Scottish and UK law, rather than simply reviewing Scottish civil decisions.
Criminal Courts
Scotland's criminal court structure parallels the civil system but with important differences. Justice of the Peace Courts handle minor criminal offenses, replacing the older district courts and providing accessible local justice for summary offenses.
Sheriff courts function as Scotland's primary criminal courts for both summary and solemn (jury) proceedings. In summary cases, sheriffs sit alone deciding both guilt and sentence. In solemn proceedings, sheriffs preside over jury trials for more serious crimes that don't reach the High Court level.
The High Court of Justiciary is the supreme criminal court, which is only subject to the authority of the Supreme Court of the United Kingdom on devolution issues. This court tries the most serious crimes, including murder, rape, and treason. High Court judges travel on circuit throughout Scotland, ensuring serious criminal cases are tried near where the offenses occurred.
The High Court also serves as Scotland's criminal appeal court, hearing appeals from all lower criminal courts. Uniquely, the High Court of Justiciary is the supreme criminal court, which is only subject to the authority of the Supreme Court of the United Kingdom on devolution issues, meaning most criminal appeals end here without the possibility of UK Supreme Court review.
Sources Of Law
Legislation
The UK Parliament can pass laws about anything in Scotland. However, under the Sewel convention, it usually won’t make laws on issues that are “devolved” (meaning they’re handled by the Scottish Parliament) unless the Scottish Parliament agrees. Some laws have special importance in Scotland’s legal system. These include the Human Rights Act 1998, the Scotland Act 1998, and the European Communities Act 1972.
New laws passed by the UK Parliament will usually say clearly whether they apply to Scotland. They might also include special wording to fit with Scotland’s unique legal system. Before a bill becomes law, it must get royal assent from the King. But today, this is just a formality; it always happens automatically.
UK Parliament laws cannot be cancelled by courts because Parliament is considered the highest legal authority in the UK. How those laws are applied can be reviewed by judges. In practice, the UK Parliament also tries not to pass laws that go against the Human Rights Act 1998 or European law, even though it technically could. There’s an ongoing debate about how much legal power the UK has given up, especially in relation to the European Union.
The Scottish Parliament is a single-chamber (unicameral) law-making body that only has the power to pass laws about Scotland on topics it’s allowed to handle (its “legislative competence”). Any law it passes must follow the Human Rights Act 1998 and European law. If it doesn’t, Scotland’s top courts, the Court of Session or the High Court of Justiciary, can strike it down as being beyond its legal powers (ultra vires).
There have been well-known cases where people challenged Scottish laws on these grounds. For example, an interest group tried (and failed) to argue that the Protection of Wild Mammals (Scotland) Act 2002, which banned fox hunting, violated their human rights. Like UK laws, Scottish laws also need royal assent, but again, this is automatic and just a formality.
Laws passed by Scotland’s own Parliament before 1707 (before the union with England) are still legally valid today, though very few remain in force. Examples include the Royal Mines Act 1424, which says that all gold and silver mines belong to the monarch, and the Leases Act 1449, which is still sometimes used in property law cases.
Common Law
Common law is a key source of law in Scotland, especially in criminal cases. Many crimes, like murder, aren’t written down in a single law; they’re based on long-standing court decisions and legal traditions. The main sources of common law in Scotland are decisions made by Scottish courts and certain rulings from the UK Supreme Court (and before that, the House of Lords).
There’s some debate about how strongly Scottish courts must follow UK Supreme Court decisions in civil cases, especially when those cases come from England or other parts of the UK. But when the Supreme Court hears an appeal from Scotland, its decision is binding and must be followed.
In criminal law, Scotland’s highest court is the High Court of Justiciary, so Scotland’s criminal common law has mostly been shaped by Scottish judges alone. Decisions from the European Court of Human Rights and the Court of Justice of the European Union also help shape Scotland’s common law, especially when interpreting human rightsand EU law.
Scottish common law is not the same as English common law; they come from different historical roots. Scotland’s common law grew from the local customs of the different groups who lived in the area, later blended with feudal ideas by Scottish kings to create a legal system that’s uniquely Scottish.
Over time, English-trained judges in the UK’s top courts have influenced Scottish common law, sometimes in ways that don’t quite fit Scotland’s legal traditions. This was especially true when laws needed to work the same way across the whole UK for practical reasons. One example is the case of Smith v Bank of Scotland, where the ruling seemed to stretch or misapply Scottish legal principles.
Institutional Writers
Since at least the 1800s, certain books written by respected legal scholars, called institutional writers, have been treated as official sources of law in Scotland. There’s some disagreement about exactly which books count and whether new ones can be added.
The most widely accepted list includes:
- Sir Thomas Craig’s Jus Feudale(1603)
- Sir James Dalrymple, Viscount of Stair’s Institutions of the Law of Scotland(1681)
- Lord Bankton’s An Institute of the Laws of Scotland(1751–1753)
- John Erskine of Carnock’s An Institute of the Law of Scotland(1773)
- George Joseph Bell’s Commentaries on the Law of Scotland(1804) and Principles of the Law of Scotland(1829)
Some experts also include:
- Sir George Mackenzie’s The Institutions of the Law of Scotland(1684)
- John Erskine’s Principles of the Law of Scotland(1754)
- Lord Kames’ Principles of Equity(1760)
These writers gained authority over time, especially as courts began to follow past decisions more closely (a practice called stare decisis) in the 19th century. Their writings aren’t as powerful as a law passed by Parliament, but they carry serious weight. As Professor Sir Thomas Smith of the University of Edinburghonce said, “The authority of an institutional writer is about the same as a decision made by a Division of the Inner House of the Court of Session.”
Custom
John Erskine of Carnock, one of the institutional writers, defined legal custom as “something that becomes law not because a ruler passed it, but because the community has used it for so long that it’s accepted as law.” This kind of custom comes from long-standing, unbroken practice. Today, legal custom plays mostly a historical role in Scotland.
Over time, it’s been replaced by written laws and the growing influence of institutional writers during the 1800s. A few customs still exist, for example, Udal law (an old Norse-based legal tradition) still affects property rights in Orkney and Shetland. But overall, custom is no longer a major part of everyday law. The last time a Scottish court based a decision on customary law was in 1890.
Legal Institutions
Government Of Scotland
The Scottish Governmentis led by the First Minister and is in charge of creating policies and putting into action the laws passed by the Scottish Parliament. The Scottish Parliament chooses one of its own members to become First Minister, and that person is then formally appointed by the King.
The First Minister is supported by several Cabinet Secretaries, each responsible for a specific area of government (like health, education, or justice). The First Minister appoints these Cabinet Secretaries, but the Scottish Parliament must agree to the appointments. Some junior Ministers help the Cabinet Secretaries with their work.
The Scottish Law Officers, the Lord Advocate and the Solicitor General for Scotland, can be chosen from outside the Parliament, but the Parliament still has to approve them. Together, the First Minister, Cabinet Secretaries, Ministers, and the two Law Officers make up the Scottish Government.
They are all known collectively as the “Scottish Ministers.” The Scottish Government is in charge of running the Scottish legal system. This responsibility falls mainly to the Cabinet Secretary for Justice and Home Affairs. This minister oversees things like the police, law enforcement, Scotland’s courts, the Scottish Prison Service, fire and rescue services, responses to civil emergencies, and civil justice matters.
Legislature
The Scottish Parliament is based in Edinburgh and has the power to make laws for Scotland on many issues. These are called “devolved” matters, areas that have been handed over from the UK Parliament in Westminster. The Scottish Parliament can pass laws on a wide range of topics, including health, education, criminal justice, local councils, the environment, and civil justice, among others.
Some important powers are still kept by the UK Parliament in Westminster. These “reserved” areas include things like national defence, international relations, major economic and tax policies, drug laws, and broadcasting. The Scottish Parliament also has the power to raise some taxes, though this power is limited.
Even though the UK Parliament technically still has the legal authority to pass laws about anything in Scotland, it follows a rule called the Sewel convention. This means it won’t normally make laws on devolved issues unless the Scottish Parliament agrees first.
Unique Features Of Scottish Law
Several distinctive features set Scottish law apart from other legal systems, reflecting its mixed jurisdiction heritage and independent development. These differences affect both legal professionals and ordinary citizens interacting with Scotland's courts.
The Three-Verdict System
Scotland, unlike other nations that use juries in criminal courts, has three verdicts available to juries. These verdicts are 'guilty', 'not guilty', and 'not proven'. This unique system has generated controversy and debate for decades, with no clear consensus on its benefits or drawbacks.
The not-proven verdict is an acquittal verdict with the exact same legal implications as a not guilty verdict. An accused person receiving either an acquittal verdict cannot be retried for the same offense, and both legally mean the prosecution failed to prove guilt beyond a reasonable doubt.
The confusion over the not-proven verdict relates to the fact that Scottish law has not defined what the not-proven verdict means, and it has the exact same legal outcome as the not guilty verdict, meaning the defendant is acquitted. Judges don't instruct juries on when to use each acquittal verdict, leaving interpretation to individual jurors' understanding.
There have been repeated calls to abolish the "not proven" verdict since the middle of the 20th century, with critics arguing it creates confusion and undermines the presumption of innocence. Besides being seen as confusing and providing an extra chance for acquittal, the verdict has also been said to undermine the presumption of innocence principle.
Recent research suggests the three-verdict system does affect jury deliberations and outcomes, though not always in predictable ways. The availability of "not proven" allows juries to express nuanced views about cases where they suspect guilt but feel evidence doesn't meet the required standard, a communication function that two-verdict systems can't provide.
Scottish Vs English Legal Systems
The English Legal System
While Scotland and England share the United Kingdom and many political institutions, their legal systems remain fundamentally distinct. Understanding these differences matters for anyone conducting business, owning property, or facing legal issues across the border.
Property law diverges most dramatically between the two systems. Scottish property law follows civilian principles of ownership and transfer rather than England's feudal-derived concepts. Scotland doesn't use trusts as extensively as England, and conveyancing procedures differ substantially, affecting how property changes hands.
Family law shows significant variations in divorce, child custody, and succession matters. Scottish courts apply different principles for property division on divorce and follow distinct rules for intestate succession when someone dies without a will. These differences can substantially affect outcomes for families with connections to both jurisdictions.
Criminal procedure differs in jury size, verdict requirements, and available sentences. Scottish juries contain fifteen members requiring simple majority verdicts, while English juries have twelve members seeking unanimous or near-unanimous verdicts. The three-verdict system creates further procedural distinctions affecting how cases are tried and appealed.
Contract and commercial law show fewer differences, partly due to UK-wide commercial pressures and European Union harmonization efforts. Even here, different precedents and doctrinal approaches can yield different results on similar facts.
The Scottish Parliament's devolved powers allow Scotland to legislate independently on most civil and criminal matters, while Westminster retains authority over reserved matters like constitutional issues and foreign affairs. This constitutional arrangement permits ongoing legal divergence between the two systems.
Legal Profession
In Scotland, the legal profession has two main types of lawyers: advocates and solicitors.
Advocates
Advocates are similar to barristers in England. They belong to the Faculty of Advocates, which divides them into junior and senior levels. Senior advocates are given the title King’s Counsel or Queen’s Counsel, depending on who is on the throne. Advocates focus on speaking for clients in court and giving expert legal advice. They usually get their work through solicitors, but in some cases, certain professional groups can hire them directly.
Solicitors
Solicitors are members of the Law Society of Scotland. They work directly with clients on all kinds of legal matters. In most cases, they handle court appearances for their clients. In the past, they couldn’t appear in the higher courts, but since 1992, they’ve been able to apply for extra rights to do so. Those who get these rights are called solicitor advocates. In Scotland, notaries public aren’t a separate profession like they are in some other countries; they must be solicitors first. And while most solicitors are also notaries, not all are.
The Scottish Law Agents Society (SLAS)is a national group that represents solicitors across Scotland. It’s voluntary and runs independently under a Royal Charter. Unlike regulatory bodies, SLAS focuses only on speaking up for solicitors, so it avoids any conflict of interest that comes with also being a regulator.
The society works on issues that affect solicitors, defends the profession’s independence, and responds to legal reforms, such as the Regulation of Legal Services (Scotland) Bill 2023. Right now, the President of the Scottish Law Agents’ Society is Mr. Darren Murdoch, a solicitor at the law firm Waddell and Mackinosh in Troon, Ayrshire.
Frequently Asked Questions
Can English Lawyers Practice In Scotland?
English-qualified solicitors and barristers cannot automatically practice Scottish law. They must qualify separately through the Law Society of Scotland or the Faculty of Advocates, though some reciprocal arrangements exist for experienced practitioners. The legal systems differ sufficiently that separate qualification ensures practitioners understand Scottish law's unique features.
Is Scottish Law Based On Roman Law?
Scottish law draws heavily from Roman law principles, particularly in property, obligations, and legal reasoning. However, it's not purely Roman law—Scotland blends civilian concepts with common law precedent, indigenous customs, and modern statutory developments. This mixed character distinguishes Scottish law from both pure civil law and common law systems.
Why Does Scotland Have The "Not Proven" Verdict?
The not-proven verdict evolved from Scotland's historical criminal procedure rather than being deliberately designed. Originally, juries stated whether charges were "proven" or "not proven." When "not guilty" was added later, "not proven" remained as a third option. Its continuation reflects Scottish legal conservatism and some practitioners' belief that it serves useful purposes.
Do Scottish Court Decisions Bind English Courts?
No. Scottish and English courts operate independently, and decisions in one jurisdiction don't create binding precedent in the other. However, courts may consider each other's decisions as persuasive authority when addressing similar legal questions, particularly in areas of UK-wide commercial or constitutional law.
How Does Devolution Affect Scottish Law?
The Scottish Parliament can legislate on devolved matters, including most civil and criminal law, while Westminster retains authority over reserved matters like constitutional issues and defense. This allows substantial legal divergence between Scotland and England on most domestic legal issues while maintaining UK unity on matters of national importance.
Are Punishments Different In Scotland Compared To England?
Sentencing frameworks differ between the Scottish and English criminal justice systems. Scotland uses different maximum sentences for some offenses, applies distinct sentencing guidelines, and employs different community-based alternatives to imprisonment. However, both systems share similar overall approaches to proportionate punishment.
Can I Use An English Will In Scotland?
An English will may be valid in Scotland, but Scottish succession law applies to Scottish property regardless of the will's origin. Different inheritance rights for spouses and children mean English wills often don't achieve the intended results for Scottish estates. Anyone with property in both jurisdictions needs jurisdiction-specific estate planning.
What Happens If I'm Arrested In Scotland While Visiting From England?
You're subject to Scottish criminal law and procedure. This means different police powers, distinct court processes, and the three-verdict system. You should seek Scottish-qualified legal advice immediately, as English legal understanding may not apply. The right to legal representation exists in both jurisdictions, though specific procedures differ.
Is It Harder To Practice Law In Scotland Than In England?
Not harder, just different. Scottish legal education and training reflect Scottish law's unique character, requiring mastery of both civilian and common law concepts. The smaller professional community and distinct institutional culture create different career experiences, though professional standards remain equally rigorous.
Conclusion
The Scottish legal system represents more than technical rules and court procedures; it embodies Scotland's historical independence, intellectual traditions, and continuing distinctiveness within the United Kingdom. This is one of the aspects that gives the Scottish legal system its uniqueness today, creating a living legal culture that balances tradition with modern needs.
This mixed jurisdiction status places Scotland among a select group of legal systems worldwide that successfully synthesize different legal families. Quebec, Louisiana, and South Africa share similar mixed characteristics, but Scotland's particular blend of Roman law, common law, and indigenous tradition remains unique.
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Callum Fraser
Author
Callum Fraser isn't just a writer about Scotland; he's a product of its rugged landscape and rich history. Born and raised in Perthshire, with the Highlands as his backyard, his love for the nation's stories was kindled by local storytellers and long walks through ancient glens.
This passion led him to pursue a degree in Scottish History from the University of Edinburgh. For over 15 years, Callum has dedicated himself to exploring and documenting his homeland, fusing his academic knowledge with essential, on-the-ground experience gained from charting road trips through the Cairngorms, hiking the misty Cuillins of Skye, and uncovering the secrets of traditional recipes in his family's kitchen.
As the Editor-in-Chief and Lead Author for Scotland's Enchanting Kingdom, Callum's mission is simple: to be your most trusted guide. He combines meticulous research with a storyteller's heart to help you discover the authentic magic of Scotland — from its best-kept travel secrets to its most cherished traditional recipes.
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